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course of proceedings, to decline making out the writ with out the direction of the court.
I perceive an idea has been entertained that no writ which is to issue by special order, is to be made out by any officer except the clerk of the crown ; this is unquestionably a mistake ; whether there be a special order or not, is not the question, but what is the nature of the writ.
Now this is not a writ of such a description as those that are made out by the cursitor: for it is a writ founded on the right of the crown to compel its officers to pay obedience to the statute: it is therefore a sort of prerogative writ, and no such writ was ever made out by the cursitor. The judges to whom it is directed are supposed by the writ to have done wrong: they may obey the writ by sealing the exceptions, or they may make a special return, which must be made to the king in Chancery, and can be made no where clse. Now, before they are called upon to do this, ought not some application to take place, as in other cases of the same kind ? If a Mandamus issues from the King's Bench to the lowest court in the country, commanding it to do its duty, it is issued upon a special application, and it would be extraordinary 'to say that that may be done to the highest court that cannot to the lowest. I think the court of, Chancery in granting such a writ as the present, acts as much judicially as the court of King's Bench does in granting a Mandamus.
If the judges make a false return, it is said that an action may be brought against them for such false return, and if it be found to be so, damages will be given, and upon such a recovery a preremptory writ commanding the same. This is said in Bull. N. P. 316, though Mr. J. BULLER does not
give any very distinct authority; but I suppose it to be the result of his investigation: now, before such high officers as the judges are put into this situation, surely it is the duty of this court to inquire whether justice requires it.
Lessee of LAWLOR
The authorities in support of this opinion are few, because the writ itself has rarely been used: it has rarely been necessary to resort to it, as the judges would be most likely to seal the exceptions in any case where they ought. There are only two authorities which I have been able to find with the assistance I have had here and in England, which was not inconsiderable.
They are, Lilly's Prac. Reg. 232, and 1 Vern. 175. Lilly states, that if the judge refuses to seal the bill of exceptions,“ then, upon a petition to the Lord Chancellor, he will grant a writ.” It might be too much to quote this book as an authority in matter of law, but in a matter of practice, I think it is a sort of authority: the compiler of that book did not conceive this to be a writ, that should issue of course ; this is some ground for holding that if according to reason, it ought not to issue of course, in point of practice it does not issue of course. In the case in Vernon, a motion was made to the Lord Keeper to grant a mandatory writ to the Chief Justice of the King's Bench to command him to sign a bill of exceptions ; now in that case, if it were conceived that the writ issued of course, the party had only to go to the cursitor and get the writ. It is clear that at that time the officer conceived he had no right to make out such a writ without the order of the court: and in that case it is called a Mandatory writ, as it unquestionably is.
1803. I am clear therefore that this writ is a writ which is not
to be made out by the cursitor: if it is to be made out at Lessee of LAWLOR all, it is by the clerk of the crown, who is the officer authoMURRAY.
rized by the constitution of this court to make out writs of
this description ; the return to it must be filed in his office. The writ conmanding judg- So that beyond all question the writ in this case has been es to affix their seals to a bill of made out by an officer not warranted to make it out at exceptions is
all; and no officer was warranted to make it out without a not to be made out by the cur. special application to the court. I am therefore of opinion sitor, but by
that this writ ought to be superseded, and I shall give dithe clerk of the crown.
rections accordingly. No officer war. ranted to make it out without But I have considered this subject, and perhaps it may be the special or der of the
useful to the parties to state what has occurred to me with court.
respect to the propriety of granting the writ, not holding myself bound, if on more solemn investigation I should be wrong. Counsel has stated the ground on which he relies, and has taken a great deal of pains and found every thing that is to be found on the subject. The facts stated to me are, that after verdict and judgment in ejectment, a writ of error brought, and the record transmitted to the court of Error, the judges of the King's Bench allowed an amendment in the record. I believe this statement was not quite correct. I believe the record had not been transmitted ; however, take it so. It is contended that the judges of the King's Bench had no power to amend the record, and that the party injured by such amendment had no means of trying whether they had done wrong or not, and of bringing the question before the court of Error, but by a bill of exceptions : on the other side the proper mode is said to be by alleging diminution and praying a certiorari and that upon the return the party would have a right to have the original record sent to the court of Error.
With the question, whether the judges of the King's Bench were right or wrong, I have nothing to do(a,) but I am bound to judge whether if they were wrong, the statute of Westm. 2. gave a remedy to the party by this writ: as the Chancellor was originally bound to judge of the proper form of new writs, so is he still when new cases occur, and he is entitled to call for the assistance of the judges for the purpose of determining what the law is on the case upon which he is called on to determine. But I am of opinion that the statute Westm. 2. does not apply to the case in question. I put out of my mind the consideration that there is no other remedy, and that there is no right without a remedy ; this is a mistake ; for before this statute there was a right without a remedy, and that statute was the remedy; then the question is, how far the statute has gone, and whether it applies to this particular case. If it be proper to provide a remedy for a particular case, and that the statute does not apply to it, an application ought to be made to the le
(a) Several instances are to be found of amendments of the sort made by the court of King's Bench in this case : vid. Dickens v. Grenvill, Carth. 3. Hil. 21 & 22 Car. 2, in which case it is said that several ancient rules made in like cases were produced to the court : vid. also Vicars v. Haydon, Cowp. 841. S. P. in which case the later authorities are collected. In the case of Power Lessee of Richard Boyce, and William Hobbs v. Rowe, (in Ireland, Pasch. 1802) the term expired whilst the case was depending in the Exchequer Chamber : the judgment having been affirmed, a motion was made to enlarge the term, and the court (LORD REDESDALE, C. assisted by the Chief Justices) on the authority of these cases made an order to amend the record by enlarging the term. A writ of error was then sued, returnable in Parliament, and upon the record so amended being transmitted, the plaintiff in error complained by petition to the House of Lords of the amendment made by the court of Exchequer Chamber as an alteration of the record and prayed a writ of certiorari, to be directed to the court of Exchequer, to transmit the record in its original form. Upon debate their Lordships refused the writ, holding the amendment to have been properly made, and finally affirmed the judgment on the mer, its. Vid. Lords' Journals, sess. 1802-3.
gislature to extend the provisions of the statute: but I can.' Lessee of
not do so by construction. Strong doubts have been enterLAWLOR
tained, whether this statute extended to all the cases to
which it has been held to extend ; it was the idea of many MURRAY.
persons that it extended only to trials at Nisi Prius; however it has been held to apply to trials at bar, and to other
I take the true rule to be, that, wherever any matter is capable of being brought upon the record, and the court refuses to allow it to be so brought, and this refusal does not in its nature come upon the record, though if the thing were allowed, that matter would appear on the record, this is the subject of a bill of exceptions : and all the cases cited to me are of this description. For instance, a party applies to have evidence received; the judge refuses it; there, the evidence if admitted, might appear on the record, but the refusal to admit it cannot appear on the record: so in the case of oyer prayed, of challenge to ju
rors, and other cases which might be put. So that I conexcept such as if allowed
ceive the construction the most extended that can be given would be on
to the statute, is, that every matter which would or might the record can, if disallowed,' be on the record if allowed, shall be brought on the record be properly
if disallowed, by bill of exceptions : no case goes beyond brought on the record by bill this construction, of exceptions.
Now, what is the case here? an application is made to the court of King's Bench to amend the record, that is, to make it what it ought to have been but for a supposed misprision of the clerk : now, suppose it so amended, the fact of the amendment does not appear on the record ; it makes no part of the record : the record after amendment is as if it had been so originally: then here would be a record appearing as if it had been in its present state originally, and a bill of exceptions stating that it did not so appear ;
this would be absurd. But if exceptions were taken in case of oyer, or of challenge of jurors, then the bill of exceptions